Category: Mike’s Column

But, what about all of those PINs?

DSS’ website states Provider Information Notices (PIN) did not appear until late 2016. It previously used “Provider Letters and CCLD Information Releases” to “…formally communicate important license-related information to CCLD-licensed providers.” The information may be useful and timely, but the content of a PIN is not legally enforceable.

          The problem has always been the problem, but that problem is a good problem, and the problem is not going away. The problem for DSS is California law does not allow it to use PINs, letters, or releases as substitutes for state regulations.

          For example, a January 10, 2019 PIN, 19-01-ASC, claimed all medical assessments to admit RCFE residents could only be “signed by a physician” as stated in Title 22 section 87458(a). The PIN claimed an RCFE had to obtain a waiver to allow a non-physician to conduct and sign the medical assessment. However, Health and Safety Code 1569.30 does not allow DSS to enforce anything “inconsistent with any statute of this state.” [For ARFs, Title 22 section 80069(a)(1) allows medical assessments to be “performed by a licensed physician or designee.”] For RCFEs to obtain a waiver to an outdated regulation makes no legal sense.

          Are there laws allowing a physician assistant and nurse practitioner to perform a physical exam and sign it?

          Yes, there are: US Public Law 111-148; California Business and Professions Code, Division 2, Chapter 6, 2834 – 2837, Nurse Practitioners; and Business and Professions Code, Division 2, Chapter 7.7, Article 1, the Physician Assistant Practice Act. However, the PIN upholds the obsolescence of the regulation and ignores state and federal law.

          California Government Code 11340.5 prevents all state agencies from issuing and enforcing memos, PINs, letters, releases, manuals, etc., unless the PINs, letters, releases, manuals, have been adopted as a regulation.

          During the recent state of emergency, the state’s constitution and its emergency services act allowed special powers and authority to be used to “preserve public health” for a period of time “not to exceed the duration of the emergency.”

          The emergency is over and so is the need for more PINs!

          A PIN cannot and does not create a new policy and procedure or regulation. An evaluator cannot enforce PIN compliance because the law prevents all agencies from issuing, using, enforcing or attempting to enforce anything not adopted as a regulation. A citation or deficiency cannot be based upon anything other than an adopted state regulation or chaptered state law. No PINs allowed.

Is Covid-19 really gone?

Viruses mutate. That is one reason elders and others at risk are encouraged to get annual flu shots. So, what about COVID-19 the SARS-CoV-2 virus?

          The California Public Health Department (CPHD) has said the SARS-CoV-2 virus is “constantly mutating,” and it is not likely the virus is gone.

          In February, DSS released Provider Information Notice 23-02-ASC to update licensees on testing, screening, precautions, etc. Regrettably, the situation, according to the PIN, will “continue to be reassessed” by CDPH.

          Facilities should always screen new admissions and existing residents for COVID-19 symptoms—fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle and/or body aches, headache, new loss of taste or smell and sore throat. However, facilities no longer have to do daily temperature checks. DSS requires facilities to monitor staff for symptoms and post signs for staff to “self-screen” for COVID-19 symptoms.

          Licensees do not have to conduct routine diagnostic screening tests on asymptomatic staff, test new staff nor test staff returning from leave or vacation, etc. New residents should be screened and tested prior to admission, but testing residents returning from a hospitalization or an outing is not needed for asymptomatic residents.

          CDPH is still requiring staff to wear masks when indoors, but residents do not. (N95 masks are not required nor is the “fitting” of those masks). Staff may wear a mask when going with residents to appointments or outings. Residents may consider wearing a mask when inside the facility or when leaving the facility. For individuals who have not been vaccinated they should always wear masks both indoor and when outdoors and around others.

SSI Rates Increase Nine Percent but Still Woefully Low

It is predicted the 2023 SSI/SSP rates are going up more than its traditional one percent. The rates will increase 9.1% to $1324.82. If a person is eligible, there is an additional $20 from Social Security retirement or disability.
          Given California’s substantial push to place into assisted living facilities the homeless, infirm prisoners, and the mentally ill, the new SSI rates are woefully low and insufficient for facilities to keep pace with California’s inflation, the third highest in the nation. It hinders facilities from paying the newly declared minimum wage of $15.50 (and some cities and counties require $17/hr. or more), higher worker’s compensation rates based upon those higher wages, higher food costs, the highest price for gasoline in the nation, increasing utility costs, and the list goes on.
          What is California’s leadership thinking? Could it make a law mandating ALL facilities accept SSI or admit a homeless resident? Could the state make ALL facilities apply for the assisted living waiver when the federal government limits the number of enrollees?
          The state is able to do whatever it wants without logical restrictions, and facility owners close, tolerate it, or move out of the state. The number of RCFEs in California dropped by over 120 from July 2021 – June 2022. Was that only because the consequences of COVID-19?
          Obviously, the election is over, but what did the electorate of California do to its assisted living industry? Is there anyone in Sacramento who gets the challenges facing facility operators? Is there anyone who cares?
The new SSI rates for RCFEs will be room and board, $646.82; care and supervision, $678; and personal and incidental needs, $168.